Asforeshadowed
after the 2013 elections, Senator Nick
Xenophon introduced
legislation to allow
voters much greater latitude in marking
their own order of preference, either for
parties above the line with
complete freedom, or for at least as many
individual candidates below
the line as there were vacancies
to be filled. His CommonwealthElectoral Amendment
(Above the Line Voting)
Bill 2013
was originally referred to the Senate
Finance
and Public Administration
Legislation Committee,
then transferred
to the Joint Standing Committee on
Electoral Matters and subsumed within its
inquiry,
whose initial emphasis
on Senate voting reform involved group voting
tickets as part of its customary
post-election review.

PRSA welcomed Senator
Xenophon’s efforts to improve voters’ lot even
though his proposal was more complex than
necessary by retaining party boxes while
dispensing with group voting tickets.
Electoral authorities would need to advertise
the new arrangements extensively instead of
concentrating on how electors can make the
most of their single transferable vote. It
would spur extra candidates nominating in
groups to meet formality requirements, and
would place at risk some currently-formal
papers with early errors in numbering. The
greater freedom allowed voters made even more
important replacing the unweighted
calculation of a single transfer value
when candidates are elected with parcels of
ballot-papers of different value.

PRSA’s submission
included a systematic examination of the
circumstances of candidates’ election and
levels of informal and exhausted votes where
the single transferable vote is in use.
Lengthy experience in Ireland, Malta, Tasmania
and the Australian Capital Territory has shown
that where there are no party boxes, parties
have needed around half a quota to stand much
chance of having a candidate elected: informal
levels remain around 1% in the first two
places where there is a single column of names
and voting is voluntary, and have tended to be
around 3-5% in the other two, with half
clearly deliberate.

Exhausted Tasmanian and
ACT ballots have rarely amounted to half a
quota except where no continuing candidates
have remained from larger parties. Nearly all
ACT MLAs have obtained a quota of votes.
Tasmania’s 1973 change
to require at least as many preferences as
there are vacancies, rather than the three
stemming from the original criterion of at
least half that number, followed several under-quota
successes where a final
transfer was not made straight away when an
exclusion left exactly as many continuing
candidates as unfilled vacancies.

The submission also
demonstrated that the election of candidates
with few first preferences only occurs with
group voting tickets that are oftennumbered quite
differently from most corresponding below-the-linevotes.
It outlined the circumstances of the tablecloth ballot-paperfor the 1999 NSW Legislative Council
poll, and the continued large numbers of
candidates and exhausted votes after changes
tightening party registration procedures and
instituting above-the-line
marking of preference orders for parties.
Exhausted votes at 7-8% have exceeded 1.5
quotas, and the last few successful
candidates’ final progress totals have been
significantly below the 4.55% quota.

The submission also
detailed the extensive national record of
misadventure and miscalculation associated
with group voting tickets, including where
misjudgements have contributed to the election
of candidates whose parties had gained
relatively low first-preference support, or
given the balance of power to rival parties in
unusual circumstances.

The central thrust of
the follow-up submission (No. 142)
to the JSCEM on Senate voting issues was to
respect voters’ wishes in relation to
marking of preferences, and remove party
boxes in order to simplify the ballot-paper.
A balance must be struck between accepting
electors’ views and minimising exhausted
votes.The
greater the initial imposition upon voters,
the more of them will have their vote declared
informal at the outset, so that their views
about the merits of candidates are
disregarded.

ACT votersoverwhelmingly obey
ballot-paper instructions to mark at least as
many preferences as there are vacancies, even
though a single first preference is accepted
as formal. Other moderate formality
possibilities would also constitute a major
step forward. There
is no logical reason for either the
permitted maximum departures from sequential
numbering (three), or proportion of squares
allowed to be left blank (10%). After finding
very high informal vote levels below the line
at the first election with party boxes in
1984, the Australian Electoral Commission
indicated that the JSCEM “might wish to
consider reducing the requirement for the
numbering of preferences still further”.

The Barton Government’s Commonwealth
Electoral Bill 1902,
passed by the House of Representatives but
not the Senate, proposed proportional
representation for Senate elections, with fully
optional preferential voting
applying. When
Andrew Inglis Clark first succeeded in having
the single transferable vote adopted in
multi-member urban Assembly electorates
covering Hobart and Launceston in 1896,
an amendment resulted in at least
half as many preferences required to be
marked as there were vacancies.

The quota-preferential
allocation of seats remains the fairest
way of determining Senate outcomes, purposely
setting out to minimise wasted votes. Thresholds
that candidates or parties must exceed if they
are not to be excluded at the start of the
scrutiny are inherently unstable, and not a
natural feature of the single transferable
vote. Arbitrary thresholds generally between
2% and 5% often apply in overseas party list
systems that are
non-preferential and allocate seats on an
average-votes-per-elected-member criterion
that pays no heed to the aggregate numbers of
wasted votes, nor necessarily to the
distortions of voters’ views that may arise
because of this.

The ACT’s modified d’Hondt
outcomes of 1989
and 1992
exposed the arbitrariness of any qualifying
threshold and illustrated how a handful of
votes determining whether a party, group or
candidate falls just above or just below it
can affect the allocation of several seats. An
examination of past Senate voting patterns
reveals the potential for the same type of
instability, especially at a double
dissolution, depending on the exact level or
nature of any threshold.

There
is nothing amiss if candidates or parties
gradually
build a quota through voters’conscious
marking of preferences. The potential for
unexpected quotas arising from fortuitous
flows of corralled above-the-line
preferences has increased as combined
support for Labor and the Coalition has
increasingly fallen below five, or now
sometimes even four Senate quotas.

A
long climb to a fluke or lucky quota
relates inherently to the availability in
various Australian jurisdictions of group
voting tickets, whose numbering can be misjudged
or manipulated, as well as to the
insistence by the largest parties on a
fixed pre-selection order, which often
needlessly puts a candidate of theirs in
a much weaker position than
necessary.Those endorsed at the top of the
ticket are elected at or near the start of the
scrutiny on a full quota of votes, while
someone lower down may, as a result, begin
with just a small fraction of a quota, and
be prone to exclusion towards the end of the
scrutiny, or be unable to attract
sufficient further preferences to reach a
quota.

A bona
fide constitution with financial and
participatory safeguards would
be acceptable as a pre-requisite for party
registration, but any strategy of primarily
seeking to artificially
deny groups and parties access to the
political process at election time is
muddle-headed. Greatly increasing deposits
will not deter the wealthy who are determined
to make their presence felt, while hundreds of
signatures can readily be collected by those
who are familiar with any restrictions on
acceptance of nominations and do not leave
their gathering to the last minute.

When party boxes were
introduced in 1983, lodgement of multiple group
voting tickets by individual
parties or groups was permitted, despite official
legal advice questioning whether
that would meet the Australian Constitution’s
requirement that senators be directly
elected.

The submission also
pointed to the desirability of odd numbers of
vacancies so that
majorities of votes translated into
majorities of seats.Majorities
were achieved by Labor or the Coalition on 36
of the 59 occasions when five or seven (in
1949 and 1984, to enlarge the Senate)
vacancies were being filled by proportional
representation, including just seven of the 22
occasions from 1970 (none in 1984). There has
been a single majority when six vacancies have
been filled: as Labor and Coalition support
levels have usually been quite some distance
apart, even 3-3 outcomes have been relatively
rare, happening 13 times in 61 separate
elections, of which five occurred in five
elections to 1961 (appointments to fill casual
vacancies used to last until the next House or
Senate election) and another three in 2007.

Deficiencies in
the party-replacement provisions for
fillingSenate
casual vacancies adopted
at referendum in 1977 rather than countback of
the outgoing candidate’s quota, which
would always apply fairly, were
highlighted when Steele Hall, re-elected as a
Liberal Movement senator for South Australia
in 1975, resigned in November 1977 to stand
for the House of Representatives as a Liberal.
With the Liberal Movement no longer in
existence, and its second candidate from 1975,
Michael Wilson, recently elected in South
Australia as Liberal Member for Torrens, in
December Premier Don Dunstan proposed its
third candidate, Janine Haines,
by then an Australian Democrat, to be the
replacement until mid-1981.

In the middle of 1997, 20% of senators
had not been elected by the people of their
state. After the July 2011
changeover, over one-quarter of sitting
senators had originally taken their seats
through appointment: at March 2014,
that portion had climbed to over one-third
following eleven new appointments in the
intervening period.

The
extremely close 2013 Western Australian
Senate outcome apparently
altered, after a recount of informal and above-the-line
votes was eventually granted on
10 October by the Australian Electoral
Commissioner, upon appeal by Senator Scott
Ludlam and candidate Wayne Dropulich.

However, 1,370
ballot-papers from two polling places could
not be located, and were effectively treated
in the recount as all being informal, altering
the relative standing of when one of either
the leading Australian Christian or Shooters
and Fishers candidates had to be excluded.
Consequently, instead of Palmer United’s
Zhenya Wang and Labor’s Louise Pratt, the Australian Sports
Party’s Wayne Dropulich and Green Scott
Ludlam were declared elected
to the fifth and sixth vacancies on 2
November.

On 15 November, the AEC petitioned
the Court of Disputed Returns to void the
entire election, whereupon under Section 367A
of the Commonwealth
Electoral Act 1918 a decision was
required within three months.

“Was the result of the
election likely to be affected by the loss of
the ballot papers? Can this Court now decide
who should have been elected? Can it do so by
looking at records of earlier counts of the
lost ballot papers? And need it now examine
ballot papers whose formality is disputed? Or
must it instead declare the election
absolutely void?”

Because
the legislation requires that
ballot-papers beexamined afresh,
Justice Hayne found that the electors who
placed the lost ballot-papers into
ballot boxes were prevented from voting
and that their number was far greater
than the smallest gap in progress totals
determining an exclusion during the
incomplete recount. Consequently an
illegal practice as defined in the Commonwealth
Electoral Act 1918 had occurred
that could have prevented two different
candidates from rightly being declared
elected.

The candidates declared
elected to the fifth and sixth vacancies were
therefore not duly elected, and it was in this
instance not possible to say who was duly
elected. As a result, the entire election was
voided and a fresh one ordered based on an
updated electoral roll and a renewed call for
nominations. Both the Australian Electoral
Commissioner and the Australian Electoral
Officer for Western Australia
subsequently resigned.

This outcome
highlighted the fact that the 1948 change to
proportional representation for electing the
Senate was not accompanied by any extension of
flexibility in powers and remedies available
to electoral officials or the Court of
Disputed Returns because election of
candidates was now primarily on the basis of
achieving a quota.

PRSA’s further
submission on Senate voting and related
arrangements to the Joint Standing Committee
on Electoral Matters emphasised the
desirability of obtaining as contemporaneous a
nation-wide expression of views as possible
without sending all voters back to polling
places. This would usually be possible in
accordance with sound quota-preferential
principles if amendments were made.

For instance, ideally
substitute votes could have been obtained from
the two polling places where ballot-papers
went missing, in the absence of suitable
scanned or other reliable electronic evidence
about their markings. Other mechanisms for
immediately correcting errors of procedure
could ensure as many as possible of those
entitled to vote had their ballot-papers
counted in various situations.

The bypassing on ballot papers
of names of disqualified candidates should be
automatic, and a fresh call for nominations
extremely unusual. For instance, the fact that
four senators had definitely been elected with
quotas in Western Australia in September 2013
should have been recognised, and the Western
Australian recount
principles, under which all
ballots are re-examined and available
vacancies are filled by the first (and
subsequent) non-successful candidate(s) to
achieve a quota, or otherwise be elected,
could have been applied to completely fresh
balloting. In some circumstances, such as when
columns of party or group candidates’ names
are fixed, specific orders might be
necessary to prevent the possibility of gaming
in pursuit of the vacancies still to be
filled.

Emphatic change of
government in Tasmania

On
16 January 2014, Tasmanian Premier Lara
Giddings announced that she would dismiss the
two Greens from her Ministry the next day, and
said Labor would only ever govern alone in
future. There would be a one-day parliamentary
sitting on 28 January to pass legislation
validating permits for Bell Bay Pulp Mill
before the House of Assembly was prorogued for
an election on 15 March.

With Liberal, Labor and the
Greens nominating five candidates in
each electorate, and the Palmer
United Party, registered on 31 January, 22
overall, there were 126 candidates
state-wide, ranging from 22 in
Bass to 30 in Denison, well up on numbers at
recent elections. Turnout was 94.5%, and 4.7%
of votes were set aside as informal.

A 12% swing took Liberal first
preferences to 51.2%, ranging from 38% in
Denison to nearly 59% in Braddon.Labor’s
vote fell 9.5% to 27.3%, its lowest support
since 1906, with 23% in both Bass and Braddon,
and up to 34% in Denison. The Greens polled
13.8%, down about 8%, achieving 7% in Braddon
through to 21% in Denison. Palmer United
obtained 5.0%, topped by 7% in Braddon.

The change of
government to Liberal after sixteen
years was clear early on election night.
When all postal votes were in, Liberals
won 15 of the 25 available seats (60%), four
in Braddon (the first time in five-member
electorates), two in Denison and
three elsewhere. Labor lost a seat in each of
Bass, Braddon and
Franklin to
emerge with seven (28%), and the Greens one in
each of Braddon and Lyons to
finish with three (12%). With two Labor MHAs
retiring, there were seven new members. Nine
women were elected.

Eight
candidates achieved a quota of first
preferences, Will Hodgman highest with
over 35%, and another candidate was
elected after the incoming Premier’s
surplus transfer. Of the seven elected
candidates with less than a quota, at
least four would have exceeded it had
another transfer from the last excluded
candidate been made immediately.

In Bass, over
two-thirds of nearly half a quota of exhausted
votes arose when no continuing Liberal
candidates remained. Two elected candidates
were over 1,000 votes short of a quota when
the last Labor candidate was excluded. In Braddon,
Palmer United’s leader was nine votes behind
the Green incumbent when excluded with almost
half a quota, of which over half became
exhausted. Next, some 40% of Green ballots
were exhausted. Liberals won the last two
seats without a quota, one 2,000 votes short,
but 450 ahead of the last excluded Labor
candidate.

Nearly two-thirds of a quota
was exhausted in closely-fought Denison,
75% of that when the last Liberal and Green
candidates were excluded. The last person
elected had just under three-quarters of a
quota, 331 votes ahead of another Labor
candidate. In Franklin,
the last Liberal elected was about 250 votes
under a quota and over 1,750 votes ahead of a
Labor candidate previously widely seen as the
next leader. Only about 20% of a quota was
exhausted.

The Greens started with
about three-quarters of a quota in Lyons,
double the support for the Palmer United
Party. Around one-third of a quota was
exhausted, well over half of this when
Palmer United’s final exclusion increased by
over 1,000 votes the lead the last
continuing Labor candidate had over the
previous Green incumbent.

Some controversy arose
when Palmer United and Liberal Party campaign
literature used the names of opponents without
their permission. When 163 of 2,338 postal
ballot-papers damaged by faulty operation of
letter-opening equipment were beyond repair
in Denison, it was fortunate that exclusion
margins were not so narrow that the whole
election may have been thrown into question.

South
Australia went to the polls
on the third Saturday in March 2014 as
legislated. Overall, there were 204 candidates
in the 47 electorates, well down from a peak
of 302 in 2002, and the lowest number since
197 in 1997. Labor, Liberal and the Greens
nominated in each electorate, and Family First
in 42. There were 31 four-candidate and 13
five-candidate contests, plus two sixes and
one three.

Turnout was 91.9% and
3.1% of votes were informal. Liberal first
preferences were up 3% to 44.8%, Labor’s down
1.7% to 35.8%, and those for the Greens and
Family First both rose slightly, to
respectively 8.7% and 6.2%. The Liberals
gained 1.4% to reach 53% in
two-party-preferred terms, winning four extra
seats, three metropolitan, plus Mount Gambier
from an independent, Don Pegler. Seven Labor
and one Liberal MHA had retired, and all those
seats were retained. Twelve women were
elected.

The donkey vote
favoured the victor in the thirteen closest
results, starting with one 505 votes apart.
Labor won four of the seats with buffers less
than 2%, and Liberal one, and both parties had
four others that swings under 4% could
reverse. Nine Liberal and six Labor MHAs had
60-65% two-party-preferred support, and two
Labor members slightly more, while five other
Liberals reached up to 80% of the vote. The 11
Liberal majorities in 13 rural seats,
following 66.3% two-party-preferred support,
were huge.

After a week’s counting, there
were 23 seats for Labor and 22 for the
Liberals, with Independents Bob Such and
Geoff Brock,
both fiercely opposed by Liberals when Labor
first-preference support was just above 10%,
also re-elected. Dr Such took
two months’ medical leave for abraintumour
without indicating whom he would support:
after intensive contact including a night dash
to Port Pirie by Premier Jay Weatherill,
Mr Brock quickly decided to
support the ALP to ensure a government was
formed, the seventh minority outcome since
1960. He signed an agreement
on supply and confidence motions foreshadowing
a Select Committee inquiry into electoral
provisions dealing with campaign conduct of
parties and candidates, and was sworn in as
Minister for Regional Development and Local
Government.

UnderSection83
of SA's Constitution Act 1934, the
Electoral Districts Boundaries Commission is
supposed to ensure that a party with over
50% of the two-party-preferred vote wins a
majority of seats, an impossible task as the
Electoral Reform
Society of SA has always
argued, starting vigorously at the 1991
referendum. After
minority-support failures in both 2002 and
2010, the Society also almost anticipated
the distorted result this time when it made
the following comments on the proposed
boundaries
of the Draft Order that hadLabor
winning 26 seats and Liberal 21 based on
Labor’s 48.4% of the vote in 2010:

“Surely
the boundaries should have been re-drawn to
reflect this vote? At the next election, there
could well be a swing back to the Labor Party.
If this swing was less than 1.6%, the Liberal
Party could still have more than 50% of the
vote and still not win a majority of seats.
Alternatively there could just as easily be a
small swing to the Liberal Party that keeps
Labor in office with only 47% of the two-party
preferred vote. While the Society does have
difficulties with the “electoral fairness
criteria,” the question should still be asked
– where
is the fairness in the proposed
redistribution?”

ERSSA’s
quota-preferential simulation showed
that in seven seven-member
electorates (the Constitution
Act 1934 requires equality),
there could have been 24 Liberal, 19
Labor, 3 Green, 1 Family First and 2
Independent MHAs, making a change of
government almost certain.

Before
the election, there had been several
pieces of legislation in
relation to the Upper House, mainly
making it more difficult for
micro-parties to register, and
relegating groups and independents to
the right-hand end of ballot- papers.
There were 63 candidates from fourteen
parties, ten groups (some where
previously just an individual might have
nominated), and one ungrouped candidate
ineligible for above-the-line
voting.

Independent
Senator Nick Xenophon endorsed two
candidates, including former
Valuer-General John Darley. His group’s
12.9% of first preferences led to
declines fromAssembly
support levels for parties, Labor
obtaining 31%, Liberal 36%, the Greens
6.5% and Family First 4.4%. Both Labor
and the Liberals won four places and the
Greens, Family First and Xenophon Group
one each. Only the last, attracting
limited transfers from excluded
candidates, had higher support than the
level of representation achieved.

There was over a quota
of first preferences for others, but no party
or group successfully aggregated those votes.
The discovery, after the declaration of the poll,
of one 1,000-vote transposition (see 10 April 2014
statement)at Liberal
expense in published polling-place data
altered the last few exclusions, but not
Labor’s taking of the final position. The
Independent Palmer Group did best,
with nearly half a quota, instead of the
Shooters and Fishers having emerged with some
0.7 of a quota.